John Roberts and judicial restraint

Posted by David Hardy · 3 August 2005 04:16 PM

National Archives has posted a page of memos written by John Roberts while he was counselor to the Attorney General. One in particular (No. 6) brings to mind the challenge posted here earlier by Prof. Robert Cottrol, namely, are Second Amendment supporters necessarily better off with a "conservative" justice, or might we be better served by "liberal" ones who are less reluctant to strike down laws?

Here's the relevant language:

A second means by which courts arrogate to themselves functions reserved to the legislative branch or the states is through so-called "fundamental rights" and "suspect class" analyses, both of which invite broad judicial scrutiny of the essentially legislative task of classification. Federal courts must, of course, determine the constitutionality of enactments when the issue is properly presented in litigation. In discharging that responsibility, however, courts also must, in the words of Justice Frankfurter, have "due regard to the fact that [they are] not exercising a primary judgment but [are] sitting in judgment upon those who also have taken the oath to observe the Constitution and who have the responsibility for carrying on government." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 164 (1951) (concurring opinion). Courts cannot, under the guise of constitutional review, restrike balances struck by the legislature or substitute their own policy choices for those of elected officials.

Two devices which invite courts to do just that are "fundamental rights" and "suspect class" review. It is of course difficult to criticize "fundamental rights" in the abstract. All of us, for example, may heartily endorse a "right to privacy." That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label "fundamental," and then resort to it as, in the words of one of Justice Black's dissents, "a loose, flexible, uncontrolled standard for holding laws unconstitutional."J Griswold v. Connecticut, 381 U.S. 479, 521 (1965). The broad range of rights which are now alleged to be "fundamental" by litigants, with only the most tenuous connection to the Constitution, bears ample witness to the dangers of this doctrine. Analysis based on "suspect classes" presents many of the same problems. Classifications based on race are suspect and do merit careful scrutiny, in light of the historic purpose of the Fourteenth Amendment. Extension of heightened scrutiny to other "insular and discrete" groups, however, represents an unjustified intrusion into legislative affairs. As with fundamental rights, there is no discernible limit to such intrusion. As Justice Rehnquist has put it: "Our society, consisting of over 200 million individuals of multitudinous origins, customs, beliefs, and cultures is, to say the least, diverse. It would hardly take extraordinary ingenuity for a lawyer to find 'insular and discrete' minorities at every turn in the road." Sugarman v. Dougall, 413 U.S. 634, 657 (1973) (dissenting opinion). Both "fundamental rights" and "suspect classes" stand as invitations for a degree of judicial intrusion not invited by the Constitution, a means through which courts impose values which do not have their source in that document.

UPDATE: Thanks for the comment -- I did indeed mean John Roberts, the judge, not John Edwards, the former VP candidate! Typo corrected.